Citation Nr: 0934528
Decision Date: 09/15/09 Archive Date: 09/23/09
DOCKET NO. 07-32 226 ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
degenerative disc disease and degenerative joint disease of
the lumbar spine.
2. Entitlement to a compensable rating for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The Veteran had active service from March 1966 to July 1988.
This matter comes before the Board of Veterans Appeals (BVA
or Board) on appeal from a June 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas that denied the benefits sought
on appeal. The Veteran expressed disagreement with that
decision and the case was referred to the Board for appellate
review.
REMAND
A preliminary review of the record discloses a need for
further development prior to further appellate review. In
this regard, the Veteran essentially testified at his hearing
before the Board that his lumbar spine and hearing loss
disabilities had increased in severity since the VA
examination performed in April 2007. He also reported that
he received treatment for his lumbar spine disability, and
therefore raised the possibility that there are additional
medical records that have not been obtained. Under these
circumstances, the Board is of the opinion that the Veteran
should be afforded additional VA examinations and that any
pertinent records generated since the April 2007 VA
examinations should be obtained for review in connection with
his appeal.
Therefore, in order to give the Veteran every consideration
with respect to the present appeal, it is the Board's opinion
that further development of the case is necessary. This case
is being returned to the RO via the Appeals Management Center
(AMC) in Washington, D.C., and the Veteran will be notified
when further action on his part is required. Accordingly,
this case is REMANDED for the following action:
1. The RO/AMC should contact the Veteran
and ask him when and where he has
received treatment for his lumbar spine
and hearing loss disabilities since his
April 2007 VA examinations. The RO/AMC
should then obtain and associate with the
claims file any such records identified
by the Veteran
2. The Veteran should be afforded an
examination of his lumbar spine to
ascertain the severity and manifestations
of his service-connected disability. Any
and all indicated evaluations, studies
and tests deemed necessary by the
examiner should be accomplished.
The examiner is requested to review all
pertinent records associated with the
claims file, and following this review
and examination, the examiner is
requested to report complaints and
clinical findings pertaining to the
Veteran's back disability in detail. The
examiner is further requested to comment
on the presence or absence of flare-ups
of pain, weakness, excessive fatigability
with use, incoordination, painful motion
and pain with use, and attempt to offer
an opinion as to whether these factors
produce any additional limitation of
motion, and, if possible, in the
additional degrees of limitation of
motion.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
However, if the requested opinion cannot
be provided without resort to
speculation, the examiner should so state
and explain why an opinion cannot be
provided without resort to speculation.
Since it is important "that each
disability be viewed in relation to its
history[,]" 38 C.F.R. § 4.1, copies of
all pertinent records in the Veteran's
claims file or in the alternative, the
claims file, must be made available to
the examiner for review.
3. The Veteran should be afforded an
examination to ascertain the severity and
manifestations his hearing loss. Any and
all indicated evaluations, studies, and
tests deemed necessary by the examiner
should be accomplished.
The examiner is requested to review all
pertinent records associated with the
claims, and following this review and
examination, the examiner is requested to
report complaints and clinical findings
pertaining to the Veteran's hearing loss
in detail, including the effect this
disability has on his daily life.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
However, if the requested opinion cannot
be provided without resort to
speculation, the examiner should so state
and explain why an opinion cannot be
provided without resort to speculation.
Since it is important "that each
disability be viewed in relation to its
history[,]" 38 C.F.R. § 4.1, copies of
all pertinent records in the Veteran's
claims file, or, in the alternative, the
claims file, must be made available to
the examiner for review in connection
with the examination.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of the
additional evidence. If the benefit sought is not granted,
the Veteran and his representative should be furnished a
Supplemental Statement of the Case, and be afforded a
reasonable opportunity to respond before the record is
returned to the Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The Veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with his current appeal. Kutscherousky v. West,
12 Vet. App. 369 (1999). No action is required of the
Veteran until he is notified.
_________________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).